The new citizen stripping laws are a threat to the rule of law

The new citizenship stripping laws that passed parliament on the 11th of December 2015 purport to further protect Australians from terrorist attacks, this new legislation part of a raft of new laws that have been enacted in the past fifteen years. Professor George Williams describes terrorism as “an attack on our most basic human rights. It can infringe our rights to life and personal security and our ability to live our lives free of fear”. On the one hand, the potential for loss of life and the difficulty in controlling and pursuing terrorists has created an environment, or perhaps opportunity, for governments to develop unprecedented control powers. This could be regarded as a pragmatic attempt to protect citizens, and responsible actions for a member state of the international community or it could also be considered an opportunistic moment to rebalance individual liberty and political power. The rule of law doctrine is predicated on its ability to protect ‘good’ people and adequately punish ‘bad’ ones, however this legislation abandons the rule of law on several fronts; by revoking a person’s natural right to citizenship, undermining equality of membership, and ignoring proper legal channels for judgement.

The concept of constitutional government requires an efficient restraint on government power, the rule of law a core value in a legal system, of which ‘due process’ and notions of equality before the law require fairness of process and natural justice- essentially the right to be heard by an impartial judge. Classical liberal philosopher Fredrick Hayek ridiculed the idea that just because a government is popularly elected –has the ‘will’ of the people- they will always protect the rule of law (think of Hitler). He agreed that ‘public opinion’ was part of the rule of law, but only one of the social mores that essentially create a self-ordering complex system, favouring common law, of judges responding to ‘immediate situations’ from accumulated knowledge. Suri Ratnapala also warns against the threat of arbitrary power, he believes it necessitates a broad acceptance of the constitution as the protector of the rule of law and “seeks to ensure that people are not at the mercy of the momentary will of a ruler or ruling group, but enjoy stability of life, liberty and property”.

In the immediate aftermath of the September 11 terrorist attacks, the United Nations enacted Resolution 1373 affirming a permanent obligation on member states “to combat by all means … threats to international peace and security caused by terrorist acts”. Against a backdrop of shock and fear, governments and the public alike feared current laws and systems were inadequate in the face of ‘lone-wolf’ attacks and non-state terrorist organisations such as Al Qaeda. In a sense the United Nation resolution expected ‘likeminded’ nations to act responsibly and increase restrictions on individual freedoms in the name of collective security. These new laws created a ‘culture of control’; a preventative paradigm fuelled by ever more draconian legislation such as increased police powers and new levels of surveillance.

The initial response of the Australian government to the new security environment was similar to most nations, given the potential for devastating consequences it was unsurprising that political leaders did not want to be accused of inadequate action. Essentially, it was argued that it was better to enact laws as a precursor to a possible attack, that it would be much better than in the aftermath of such devastation that rational debate would be near impossible. During debate on the Security Legislation Amendment (Terrorism) Bill 2002 (Cth) package Attorney-General, Darryl Williams, described the extraordinary new powers conferred on the intelligence agencies as appropriates for circumstances “unlike ordinary crime, necessitating a response quite unlike the accepted responses to criminal activity”. Alternatively, Greens Senator Bob Brown said: “The existing criminal law, with offences such as murder… can and should be used to prosecute and penalise anything that can sensibly be described as terrorism”. However, soon the hyper-legislation of the Howard government (in-excess of fifty pieces of ‘special powers’ legislation) enabled by a strong majority meant the opposition and public found it increasingly difficult to ‘keep up’. In fact, anti-terrorism became a winning political strategy, a wedge issue that attempted to divide political parties, stifle genuine debate and creating a ‘unity ticket’ regarding security. Despite a change of government that momentarily stalled new laws, Prime Minister Kevin Rudd spoke of the “balance of preserving civil liberties, rule of law and security of Australian people and interests”, the major parties continue to operate in unison on matters of security.

Proponents for the new citizen-stripping laws argue the State has the right to revoke citizenship if an individual behaves in a manner not worthy of membership to the Australian community. The new Act states:
This Act is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

Professor Williams believes the new law is unconstitutional because it hands the Minister discretionary powers to declare guilt without court actions. He points to recent Anti-bikie laws of where the High Court has struck “down laws that do amount to a breach of the separation of powers”. Whereas, Tasmanian Liberal Senator, Richard Colbeck, argued in the Senate that:
The concept of allegiance is central to the constitutional term “alien” and to this Bill’s reliance upon the aliens’ power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community.

Arguments claiming actions determine your right to citizenship ignore the basic human right to ‘belong’, regarding instead that it as a revocable privilege. By advocating the importance of actions, of a person’s obligation to responsible behaviour as a precursor to citizenship fundamentally weakens the concept of nationhood. After all, whilst a nation is a political construct it is also an enate human behaviour to belong to a community. Regardless of a person’s actions they should be subject to the rule of law- to formal legal processes that punish but not cancel their citizenship.

Furthermore, by exiling only certain Australian citizens, the new laws create different classes of membership. The new law only applies to dual citizens –cannot leave a person stateless- and therefore if two Australians perpetrate the same horrendous crimes only the dual citizen risks losing their citizenship. During debate of the Bill, Greens MP Adam Bandt, pointed to “one of the most fundamental principles of civil law and the English constitutional system … that is if you are born in a country you are a citizen of the country and it is not the parliament’s prerogative to take it away.”

Furthermore there is considerable risk of excessive executive power, that an individual without judicial approval, can determine the citizenship of a person, and by doing so, diminish the protection of all individuals. The Australian legislation stands only with Great Britain in providing absolute Ministerial discretion to strip dual nationals of their citizenship. In the United Kingdom the Home Secretary can deprive a person of the citizenship if it is ‘conducive to public good’. The Australian Act states that the “the rules of natural justice do not apply in relation to the powers of the Minister under this section”. That: 
If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister must give written notice to that effect at such time and to such persons as the Minister considers appropriate.

Over the past few years many nations have expanded their citizenship stripping laws, but in general most require some input from the judicial system. Whilst France stripped a French-Moroccan man of his citizenship in 2013, he was first convicted in court of terrorism. In Canada, the courts decide on whether a citizen has engaged in terrorism related acts, whilst in the United States only a criminal conviction can revoke the citizenship of non-naturalised American.

Perhaps the unprecedented security pressures, given the potential for catastrophic damage and potential loss of life, has understandably encouraged political leaders to develop laws that manifestly ignore civil liberties on the pretext of protection. Regardless, these anti-terrorism measures- such as the citizen stripping laws- have increasingly stretched understandings of the rule of law, most particularly in regards to a lack of judicial oversight, overt secrecy and impact on an individuals’ liberty. Whilst other nations have laws to revoke a person’s citizenship, in general most operate within legal systems. Finally, the creation of ‘conditional’ (suitable behaviour) nationality and different rules depending on dual-citizen applicability is patently inconsistent with traditional notions of citizenship.

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